Last month, it was reported that a number of members of the Corporate Alliance Against Domestic Violence, “an alliance of progressive companies and organisations working individually and collectively to prevent domestic violence”, announced plans to discipline staff (up to and including dismissal) who were guilty of domestic violence.  This re-ignited the debate about when an employer is able to discipline employees for criminal conduct outside of the workplace.

What does the contract/handbook say?

Employers should be cautious about dismissing an employee for conduct outside of the workplace merely because the employee has committed a criminal offence.  Employers should first consider whether the employment contract or staff handbook include “committing a criminal offence” in the definition of  “gross misconduct”.  Usually, such a definition will carve out minor motoring offences. 

If criminal convictions are covered, it is likely that an employer can fairly take disciplinary action (up to and including dismissal) against an employee for criminal conduct outside of work, provided that the employer has followed a fair process and the criminal conduct is related to the employee’s work.

Even if the contract or handbook do not explicitly cover criminal convictions, an employer is likely to be able to justify dismissing an employee for gross misconduct provided that it can show that such conduct makes the employee unsuitable to carry out his job for the employer and is sufficiently serious to justify disciplinary action.  This may apply, for example, where a cashier is convicted of theft.

Is the conduct relevant to the employee’s work?

Employers must always consider whether the conduct is relevant to the employer’s business and the employee’s work, whether or not they have the contractual right to discipline employees found guilty of committing a criminal offence.

This was specifically addressed in the case of X -v- Y [2004] EWCA Civ 662 which concerned an employee, X, who was cautioned by the Police for committing a sex offence with another man in a lavatory to which the public had access.  The offence occurred whilst X was off duty and away from his workplace.  Whilst X’s conduct may not have attracted quite the level of publicity as when George Michael was involved in a similar incident, Y, his employer (and, crucially, a charity working with young offenders), found out about the caution and suspended X pending an investigation. After a disciplinary hearing, X was dismissed.  X claimed that his dismissal was unfair. 

The Court of Appeal held that the caution for the offence was relevant to X’s employment and found that Y was entitled to treat the caution as an acceptance that a criminal offence had been committed, which, in turn, amounted to gross misconduct within the terms of its disciplinary procedure.

Should employees disclose their convictions?

Certain employees (such as those with professional qualifications, those who are FSA registered, or in a position of care for the vulnerable) are required to disclose any criminal conviction to their employer.  Again, this was considered in X –v- Y.

Y argued that a reason for X’s dismissal included his failure to disclose the caution to Y, which he should have done as a matter relevant to his employment.  X claimed that his dismissal was in breach of Article 8 of the European Convention on Human Rights in that his dismissal was inconsistent with his right to respect for a private life.  The Court of Appeal found that the case did not fall within the right to respect for a private life as the conduct in question was committed in a public place and should have been disclosed by him to Y as a matter of legitimate concern to it.  Criminal offences are normally a matter for legitimate public concern.  The fact that X wanted to keep the matter private did not make it part of his private life. 

In contrast, employers should be aware that if the criminal offence in question relates to an incident in private (for example, domestic violence in the employee’s home), the right to respect for private life under Article 8 may well be upheld, although this would probably be dependent on the type of work undertaken by the employee.

In summary, the mere fact that an employee is convicted for criminal conduct does not automatically mean that the employee can be disciplined or even sacked for gross misconduct.  The first port of call for employers considering disciplining employees who have committed a criminal offence is to review the employee’s contract and handbook.  Assuming these make it clear that gross  misconduct includes conviction of a criminal offence, it will be easier for the employer to instigate disciplinary proceedings.  Such a clause does not give employers carte-blanche, and in each case they must also consider whether the conduct is relevant to the employee’s work and the employee must be taken through a fair procedure (which, as a minimum, must afford the employee an opportunity to explain his case).  Where criminal conduct is not expressly stated to be deemed gross misconduct, it may well be more difficult for an employer to justify disciplinary action.  As ever, it is crucial that employers regularly review and update their contracts and handbooks to ensure maximum flexibility.

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